Law Commons^™

The Exclusionary Rule In Immigration Proceedings: Where It Was, Where It Is, Where It May Be Going, Irene Scharf

San Diego International Law Journal

The piece examines the treatment of the Fourth Amendment in immigration courts by surveying its jurisprudential history in those courts and then analyzes the judicial responses thereto. Disparities among circuit court rulings add to the confusion and unpredictability typical of Immigration Court decisions. Finally, the article discusses the difficulties raised by the divergent circuit court opinions and offers suggestions as to how we may resolve these difficulties in accordance with the Constitution's requirement of fair play.

Did The Madisonian Compromise Survive Detention At Guantanamo?, Lumen N. Mulligan

Faculty Works

In this essay, I take up the Court’s less heralded second holding in Boumediene v. Bush - that a federal habeas court must have the institutional capacity to find facts, which in Boumediene itself meant that a federal district court must be available to the petitioners. Although this has gone largely unnoticed, I contend that this holding is inconsistent with the Madisonian Compromise - the standard view that the Constitution does not require jurisdiction in any federal court, except the Supreme Court. In fact, it appears that the Court adopted Justice Story’s position that the Constitution requires vesting of jurisdiction …

Unifying The Field Of Comparative Judicial Politics: Towards A General Theory Of Judicial Behaviour, Arthur Dyevre

Arthur Dyevre

The field of judicial politics had long been neglected by political scientists outside the United States. But the past twenty years have witnessed considerable change. There is now a large body of scholarship on European courts and judges. And judicial politics is on its way to become a sub-field of comparative politics in its own right. Examining the models used in the literature, this article suggests that the geographical convergence is also bringing about theoretical convergence. One manifestation of theoretical convergence is that models of judicial decision-making once deemed inapplicable in Europe are now used in studies of European courts …

Clear As Mud: How The Uncertain Precedential Status Of Unpublished Opinions Muddles Qualified Immunity Determinations, David R. Cleveland

David R. Cleveland

While unpublished opinions are now freely citeable under Federal Rule of Appellate Procedure 32.1, their precedential value remains uncertain. This ambiguity muddles the already unclear law surrounding qualified immunity and denies courts valuable precedents for making fair and consistent judgments on these critical civil rights issues. When faced with a claim that they have violated a person’s civil rights, government officials typically claim qualified immunity. The test is whether they have violated “clearly established law.” Unfortunately, the federal circuits differ on whether unpublished opinions may be used in determining clearly established law. This article, Clear as Mud: How the Uncertain …

Regulatory Adjudication, Marcia L. Mccormick

All Faculty Scholarship

Calls for increased regulation are flying fast and furious these days. We use regulation in the United States to prevent harm that various kinds of activities might cause and also to create positive external benefits that those activities could yield, but might not without incentives. Most regulatory programs in the United States provide a blend of measures designed to create these positive external benefits, promote good practices in the industry, prevent harms, and provide those harmed with remedies. At a time in which we contemplate new ways to regulate to deal with the crises of the day and prevent the …

Two Paths To Judicial Power: The Basic Structure Doctrine And Public Interest Litigation In Comparative Perspective, Manoj Mate

Manoj S. Mate